Voting Rights for Voters with Disabilities

Introduction

According to a 2013 study conducted by the Presidential Committee on Election Administration, there are approximately 35 million Americans with disabilities who are eligible to vote. The study, entitled “Reducing Obstacles to Voting for People with Disabilities”, also concluded that eligible voters with disabilities are less likely to register than individuals without disabilities. In addition, the study concluded that of the eligible voters with disabilities who do register, they are also slightly less likely to vote than registered voters without disabilities.

Historically the lower voter turnout among Americans who have disabilities has been at least in part due to the inaccessibility of polling places and because of the inaccessibility of the voting process. Fortunately, because of laws passed at the Federal level the barriers to voting for individuals with disabilities have been significantly reduced.

The first efforts to open up polling places for voters with disabilities came with the Voting Rights Act of 1965 and the Voting Accessibility for the Elderly and Handicapped Act of 1984. These two acts did not quite accomplish the goal of opening polling places for individuals with disabilities. So Congress next enacted the Americans with Disabilities Act of 1990 (ADA), the National Voter Registration Act of 1993, and the Help America Vote Act of 2002 (HAVA). While these laws are far from perfect, they now jointly create a situation where many of the barriers to voting for persons with disabilities have been removed.

So the question is, what rights do these laws create for voters with disabilities, and what should you do if you are unable to vote because of an inaccessible polling place or election process?

Before The Election - Registering To Vote

The National Voter Registration Act of 1993 made it easier for individuals with disabilities to register to vote because it required that agencies who primarily serve customers with disabilities to have programs in place to offer those customers the opportunity to register to vote. While this section has opened up voter registration opportunities, it certainly has not achieved its full potential as the requirement is rarely enforced when agencies ignore the law and don’t offer the opportunity for persons with disabilities to register to vote.

The ADA also made it easier for persons with disabilities to register to vote. Of course, Title II of the ADA requires that all government facilities be accessible to persons with disabilities. But the big improvement in voter registration comes with the ADA’s “effective communications” requirement. The “effective communications” rule requires that voter registration materials be made available in alternative formats such as braille or large print. Unfortunately, this requirement isn’t implemented consistently, and it can be very difficult to obtain voter registration forms in alternative formats in a timely manner. So if you want to register using alternative formats you will likely have to ask for them, and it may take asking several times.

The “effective communications” rule also opens up a lot of other materials for persons with disabilities. For example, election authorities must have a way to communicate with voters who are deaf or hard of hearing. In addition, election authorities must make any material that is given out to voters, such as sample ballots, available in alternative formats (i.e. braille, large print, etc).

In addition, the ADA also made a major advancement for individuals with mental or intellectual disabilities because voting authorities can no longer deny these individuals the right to vote. In particular, the ADA holds that voting authorities cannot have any test, such as a reading or writing test, in place for those wishing to vote that would tend to screen out individuals with mental or intellectual disabilities

Access To Polling Places

The ADA, as did the Voting Accessibility for the Elderly and Handicapped Act of 1984, requires that polling places are physically accessible to persons with disabilities. This means that the polling place must have accessible:

Parking spaces;

Passenger drop-off areas;

Sidewalks and walkways;

Building entrances;

Hallways and corridors; and

Voting area.

In addition, any other portions of the facility, such as restrooms, which are made available to voters also must be accessible.

It is important to remember however that many polling places are not government buildings, and are often private structures that are not normally subject to the more stringent accessibility requirements of Title II of the ADA. Consequently, the ADA does permit voting authorities to make a polling place accessible with temporary solutions to inaccessible features so long as those temporary solutions still allow the voter to vote. When a voting authority uses a temporary solution, they are supposed to attempt to eventually replace the polling place that is inaccessible with one that is fully accessible. If a fully accessible polling place isn’t available, the voting authority may be required to ultimately resolve the issue by permanently fixing the inaccessible feature.

To ensure that polling places are accessible, voting authorities are to use the guidelines in the Americans with Disabilities Act Accessibility Guidelines (ADAAG). The U.S. Department of Justice has also released an ADA Checklist for Polling Places that provides information on ADAAG standards specifically as they relate to polling places. The ADA Checklist for Polling Places is also helpful because it provides some useful information on some of the acceptable temporary solutions to inaccessible features of a polling place.

Another key aspect of the ADA’s physical access requirement is that election authorities must allow voters with disabilities who use service animals to enter all areas of the polling place, with their service animals, that are open to voters.

Finally, under the ADA voting authorities must modify their policies and procedures where needed to permit access to the voting process and polling place for persons with disabilities. For example, if the election process requires voters to present IDs to vote, the election authority cannot require an ID that is not available to persons with disabilities, such as a driver’s license because many persons with disabilities do not qualify to drive. Another example is when voters must stand in long lines, election workers might have to provide a voter with a disability who cannot stand in line due to their disability with a chair or another suitable place to wait their turn to vote. In other words, a voting authority cannot have a policy or procedure that discriminates against voters with disabilities.

Although the ADA has certainly alleviated many of the problems with accessing polling places, accessing the polling place is only one piece of the puzzle for voters with disabilities. Voters with disabilities must also be able to access and use the ballot in order to actually cast their vote.

Have you ever had difficulty accessing your local polling place because of a disability?

An accessible voting machine with "jelly buttons" which make the machine accessible for voters with manual dexterity disabilities. Image provided by Joseph Hall under Creative Commons Attribution-Share Alike 3.0 license.

At The Ballot Box or Voting Machine

Prior to 2002, there was no specific statute that said that voting systems had to be accessible to persons with disabilities. That changed when Congress passed HAVA. HAVA specifically states that jurisdictions must have accessible voting systems for all Federal elections. That has translated to electronic systems in many jurisdictions.

HAVA also says that election officials must maintain their accessible voting systems in working order and that polling staff must receive adequate training on the use of the accessible voting systems. Finally, voters using accessible voting equipment must also be afforded the same amount of privacy as other voters.

It is important to note that HAVA’s requirement for accessible voting machines only applies to Federal elections. Consequently, the ADA’s requirement for accessible government programs and effective communications controls accessibility expectations for State, County, and local elections.

Many States are opting to go with the voting machines required by HAVA to avoid duplicate systems and to avoid some of the secret ballot issues inherent with providing ballots in alternative formats.

In fact, The U.S. Department of Justice has concluded that providing braille ballots is not an appropriate alternative to offer a person who is blind because this ballot is distinguishable from others and thus would eliminate the secrecy of the person's vote. Presumably the same would hold true of large print ballots.

This means that for State, County, and local elections that are not subject to HAVA, elections officials must provide blind and visually impaired voters with a means of accessing the ballot without distinguishing their vote. This is often accomplished via ballot overlays, electronic systems, or even a telephone voting system. The key is that, although a blind or visually impaired person has the right to have someone assist them in the voting booth, they must be given the means of voting independently without assistance.

Another key area for effective communications for all elections is for voters who are deaf or hearing impaired. Elections officials must have a means, such as pen and paper, readily available to communicate with such individuals. Finally, if election officials provide any other information besides ballots, to voters at the polling places that information must be available in alternative formats.

Remember while the vast majority of elections should now be accessible, if you are not comfortable voting at the polling place, election officials are required to offer absentee voting, which would allow you to cast your ballot from home.

Have you ever had difficulty voting because the voting equipment was not accessible or because the accessible features did not work?

What To Do When It Doesn’t Work The Way It Is Supposed To

Although, much has been accomplished in making elections far more accessible to voters with a disability, the system isn’t perfect and problems do still occur. In particular, accessibility still tends to lag behind in smaller rural communities that simply haven’t caught up yet. When this happens you do have options to fix the situation.

When a jurisdiction doesn’t comply with a Federal voting rights law that requires accessible elections, the voter can file a complaint with the United States Department of Justice Voting Rights Section. The Voting rights section can be reached via telephone at 800-253-3931 or via e-mail at voting.section@usdoj.gov.

Keep in mind that many States also have their own laws regarding accessible elections. You can check with your State election authority for information on these voting rights laws and for instructions on how to file complaints when State laws are not followed.

Finally, if the ADA is violated you can also consider filing a lawsuit. But keep in mind that there is no private litigation right for violations of HAVA.

Conclusion

I hope you have learned something from this article about your rights as a voter who happens to have a disability. I also hope that armed with this information, you will exercise your right to vote.

Video demonstrating the use of the ImageCast accessible voting machine.

Demonstration of accessible voting for the blind and visually impaired via telephone for the 2013 Federal election.

Comments

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Very well written informative piece. The information in the first paragraph was very interesting. So about 16% of the eligible voters are disabled. And the eligible disabled are equal to 28% of the people who voted in the last election since only 57% of eligible voters voted. So if the disabled voters are less likely to register to vote than regular voters we can figure less than 57% of disabled voters actually register to vote. That means over 15 million disabled eligible voters don't register to vote!

I wonder how many of the disabled voters are Democrat and how many are Republican. 15 million seems like a lot but spread across the nation I guess it would only mean something to the parties if there was a concentration of unregistered disabled voters in swing states. I wonder how likely that is and whether in swing states there are more registered disabled than in red or blue states which might indicate the parties have figured this out and are helping to get disabled registered in swing states, and who cares about the disabled vote where it's not needed. This would be an interesting research assignment but only if led somewhere.